Gatoil International Inc. v Arkwright-Boston Manufacturers Mutual Insurance Company
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Scarman,Lord Wilberforce,Lord Keith of Kinkel,Lord Roskill |
| Judgment Date | 13 December 1984 |
| Judgment citation (vLex) | [1984] UKHL J1213-3 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 13 December 1984 |
[1984] UKHL J1213-3
House of Lords
Lord Fraser of Tullybelton
Lord Scarman
Lord Wilberforce
Lord Keith of Kinkel
Lord Roskill
My Lords,
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Keith of Kinkel and Lord Wilberforce. I agree with both of them and, for the reasons stated in their speeches, I would allow the appeal.
My Lords,
I agree with the speech to be delivered by my noble and learned friend, Lord Keith of Kinkel. For the reasons he gives I would allow the appeal.
I have also had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Wilberforce. I agree with his view that the interpretation of the Act of 1956 is legitimately aided by consideration of the travaux pr�paratoires to which he refers and that we should not deny ourselves the reinforcement which they provide to the interpretation which for the reasons given by Lord Keith of Kinkel we hold to be correct.
My Lords,
I have had the benefit of reading in advance the speech to be delivered by my noble and learned friend, Lord Keith of Kinkel. I take the benefit of his full statement of the issue in this appeal which, briefly, concerns the interpretation of section 47(2)( e) of the Administration of Justice Act 1956. Do the words:
"any agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;"
cover an agreement to pay premiums on a policy of insurance under a War Risk Open Cover on cargo? If so, the arrestment of the appellants' ship, m.v. Sandrina, by order of the Sheriff at Lerwick, was valid: if not, it must be discharged.
Taking the statutory words by themselves, it is obvious enough that they are, in a legal sense, ambiguous, or as I would prefer to state it, loose textured. It is not possible to ascribe a precise or certain meaning to words denoting relationships without an indication what the criterion of relationship is to be. Must the agreement be directly "for" carriage of goods in a ship, or is it enough that it involves directly or indirectly, or that the parties contemplated that there would be, such carriage as a consequence of the agreement? How close, in such a case, must the relationship be between the agreement and the carriage? Is any connection of a factual character between the agreement and some carriage in a ship sufficient? If not, what is the test of relevant connection? Even when paragraph ( e) is read in conjunction with the other paragraphs in section 47(2), the statute provides no guidance: the courts are left with a choice of a broad or a narrow interpretation.
Decided authorities show that this choice is inevitable and difficult: they are analysed by my noble and learned friend, Lord Keith of Kinkel. It is no doubt true that earlier cases, based on similar words occurring in the County Court Admiralty Jurisdiction Amendment Act 1869, section 2, may have been influenced by a reluctance to attribute to county courts a wider jurisdiction than was then possessed by the Admiralty Court, but at least they show that the words were capable of being narrowly construed.
After 1956, when the provision appeared (substantially) in section 1(1) of the Act of 1956, as regards English cases, a more liberal approach was preferred. The relationship accepted in The Queen of the South [1968] P. 449, was quite loose: the agreement for mooring etc. of a ship was held to fall within section 1(1)( h), (in which paragraphs ( d) and ( e) of Section 47(2) were combined), because it involved the use of motor boats i.e. ships. As for salvage agreements, although in The Eschersheim [1976] 1 W.L.R. 430, an agreement for salvage services was held to be within paragraph ( h) as involving the use of a salvage vessel, in The Tesaba [1982]1 Lloyd's Rep. 397, a claim on a salvage agreement for damages for breach of an undertaking to obtain security from cargo owners was held to be outside it. In The Sonia S. [1983] 2 Lloyd's Rep. 63, the judge held to be within paragraph ( h), � now in section 20(2) of the Act of 1981 � an agreement for the hire by shipowners of containers to be carried on a ship. My noble and learned friend, Lord Keith of Kinkel, considers this decision to be wrong and the relationship to be too remote, and I agree with him, but the case well illustrates the looseness of the provision and the spectral character of the boundary between claims within and those outwith the subsection. Finally, we may note that, in Scotland, in The Aifanourios 1980 S.C. 346, Lord Wylie held that a claim for release calls under a policy of marine insurance was outwith both paragraph ( d) and paragraph ( e) of section 47(1), but the second division in the present case held to the contrary and declined to follow The Aifanourios.
My Lords, there is here, no doubt, no more than a degree of doubt as to the meaning of statutory words not significantly greater than often arises, particularly in such cases as reach this House. They can be, and are, solved by a judicial process of interpretation. My noble and learned friend, Lord Keith of Kinkel, has followed this path, and if there were no other material to help us, I would be content to follow him. However, I believe that contentment can be converted to conviction by legitimate reinforcement ab extra, namely, by resort to the travaux pr�paratoires of the International Convention relating to the Arrest of Seagoing Ships, signed at Brussels on 10 May 1952.
The case for a cautious use of travaux pr�paratoires in aid of the interpretation of conventions or treaties of private law received some acceptance in this House in Fothergill v. Monarch Airlines Ltd. [1981] A.C. 251. I there suggested that two conditions must be fulfilled before they can be used: first, that the material is public and accessible; secondly, that it clearly and indisputably points to a definite legislative intention.
The case for resort to them here is, in my opinion, a strong one. The Administration of Justice Act 1956, Part V (which included section 47), was enacted to give effect to the obligations of the United Kingdom consequent on its accession to the Brussels Convention of 1952, see The Eschersheim [1976] 1 W.L.R. 430, per Lord Diplock at p. 434, and in particular to displace, in Scotland, the wide common law powers of arrestment in favour of statutory provisions which were narrower and precisely defined. The situation is slightly more complex in that the list of maritime claims set out in Article 1 of the Convention was, in fact, based on the list of such claims then applicable in England under the Supreme Court of Judicature (Consolidation) Act 1925, section 22, (see particularly subsection (1)( a)(xii).) This list was adopted, as part of a compromise, by the Brussels Convention, and was then made applicable (with minor variations) to England and to Scotland by section 1 and section 47 of the Act of 1956 respectively. This derivation provides a clear justification for attributing to the provisions in the Scottish portion of the Act of 1956 the meaning which they ought to receive under the Convention � if that can be ascertained.
The proceedings of the conference which led to the Brussels Convention are public and accessible: they have been published by the International Maritime Committee as regards the preparatory conference at Naples held in 1951, and as regards the Diplomatic Conference of 1952 by the Foreign Ministry of Belgium. They show the following:
1. As regards the list of maritime claims in Article 1 the report of the Naples Conference (Bulletin No. 105) states as follows:
"This enumeration is based on the types of claims specifically assigned under English law to the Admiralty Jurisdiction of the High Court of Justice (Supreme Court of Judicature (Consolidation) Act 1925.) The International Commission thinks that the types of claims mentioned in this paragraph cover practically every maritime claim in respect of which a ship should be arrested, whilst on the other hand there seem to be no other claims of a maritime character which should, under the Convention, justify such arrest."
2. A decision was made by a committee of the Netherlands Maritime Law Association to propose the addition to the list of maritime claims of a new subsection reading:
"( q) premiums of insurance due to underwriters and contributions due to mutual insurance associations for cover granted in connection with the operation of a ship." (Naples Report, p. 59.)
This was put forward at the Brussels Conference (Brussels Report, p. 96.)
3. The addition of this new paragraph was opposed by the British delegation, on the ground that the policy of insurance itself was sufficient protection for insurers (pp. 101�2.)
4. The Netherlands delegation maintained its proposal claiming that the claims in question were essentially maritime claims (p. 103.)
5. The British delegation claimed that the clause was unnecessary in the U.K. but understood that elsewhere it might be of use (p. 104.)
6. The French delegation considered there was no "absolute necessity" to include insurance premia in the list of maritime claims (p. 106.)
7. Article 1 of the Convention was agreed without the addition of the new paragraph.
The conclusion from the above is clear. The conference decided not to include premia on policies of insurance among the maritime claims justifying arrest. It did so, moreover, not because it thought that these premia were already covered (so that explicit reference was unnecessary) but because it considered it unnecessary as a matter of policy to provide for...
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